Washington, D.C.— Senator Sherrod Brown (D-Ohio) and Senator Elizabeth Warren (D-Mass.) today hosted a press call to highlight Judge Amy Coney Barrett’s anti-worker record and how, with Judge Barrett’s confirmation, the Supreme Court could further undermine workers’ rights.
Brown and Warren were joined by Dale Kleber, an attorney and plaintiff in Kleber v. CareFusion, and Chris Mabe, president of the Ohio Civil Service Employees Association, OCSEA/AFSCME Local 11.
In just three years on the 7th Circuit, Barrett has consistently ruled against working Americans in favor of their bosses and big corporations. In her time as a judge, Barrett has made it impossible for a worker to get retirement benefits he earned, ignored the scope of truckers’ actual employment duties to deny them overtime pay, disregarded 7th Circuit precedent to rule against employees alleging wrongful termination, blocked a jury trial for a woman alleging she was fired due to a brain tumor, limited protections for older workers, made it harder for gig workers to get overtime pay, and sided with an employer who segregated workers by race.
Excerpts from senators’ and speakers’ remarks follow:
“Right now, millions of Americans are struggling because of President Trump’s failure to get this pandemic under control," said Senator Brown. "Yet Trump and Mitch McConnell have walked away from the negotiating table and refused to extend UI benefits for the half a million Ohioans out of work, refused to help people pay the rent and the bills, and refused to get more money to our schools and small businesses. Their answer is to tell Ohioans ‘you’re on your own’ while they move heaven and earth to put another justice on the Supreme Court that will always side with corporations over workers. We cannot stand by and watch unelected judges – installed by politicians who take their cues from Wall Street and corporate lobbyists – continue to erode workers’ rights.”
“If Amy Coney Barrett’s nomination is rammed through, she will bring her anti-worker outlook to the highest court for generations to come," said Senator Warren. "She will also help advance a long-standing Republican goal to overturn the ACA and devastate health care for workers, especially the millions who lost their jobs during the COVID-19 pandemic along with their health insurance. Senate Democrats are fighting this nomination – and we will not let Republicans get away with this illegitimate power grab to tilt the courts further in favor of billionaires and giant corporations.”
Dale Kleber, attorney and plaintiff in Kleber v. CareFusion
“My name is Dale Kleber. I am 64 years old and currently reside in Hinsdale, Illinois, a suburb of Chicago. I am a highly experienced corporate attorney, the former General Counsel of a publicly-traded food and dairy processor and the former CEO of a national dairy trade association.
“In 2018, I experienced firsthand how Judge Any Coney Barrett applies her judicial philosophies. In my case Judge Barrett focused on the textual "trees" to ignore the larger legal "forest" in order to arrive at the policy result she desired.
“The policy outcomes that Judge Barrett wishes to achieve are unfavorable older workers, are unfair to working Americans of any age and are unsympathetic to individuals who experience discrimination in the workplace.
“In my case, Kleber v. CareFusion, Judge Barrett simply ignored the fundamental purpose of the Age Discrimination in Employment Act of 1967, or the ADEA, in ruling that certain types of age discrimination by employers are acceptable . . . even though substantially similar hiring practices were long ago declared illegal by the Supreme Court under parallel federal laws outlawing discrimination on the basis of race, color, gender, religion and national origin.
“In reaching this result, Judge Barrett effectively allowed employers to screen out job applicants solely because they happen to be over age 40, which is the legally protected age threshold under ADEA. Here are the facts of my case:
“In 2014, I was 58 years old and seeking a job. I applied for a senior counsel position in the legal department of a medical technology company known as CareFusion, Inc. CareFusion’s job description specified that applicants should have “3 to 7 years of relevant legal experience (and no more than seven years”). This job requirement, known as an “experience cap,” excluded at least 95 percent of all attorney applicants over 40 years old—not because they were unqualified or incapable of performing the job, but merely because they were older than CareFusion wanted.
“My application was summarily rejected and CareFusion hired a 29 year old applicant. In 2015, I filed a lawsuit alleging unlawful age discrimination in violation of the ADEA. On appeal, a three-judge panel on the 7th Circuit Court of Appeals found in my favor. The majority “could not imagine” that in adopting the ADEA Congress intended only to protect employees and internal job applicants, but not extend the same protections to external job applicants.
“Shortly thereafter, CareFusion appealed the decision to all judges of 7th Circuit, including Judge Barrett, who had recently been confirmed. In 2019, the full court issued its opinion. Judge Barrett and three similarly-minded “textualist” judges, all recently appointed by President Trump, overturned the panel decision, relying on a myopic reading of the statutory language.
“One highly respected veteran judge observed in his dissenting opinion that the majority, including Judge Barrett and three other Trump-appointed judges, were “closing its eyes to fifty years of history, context, and application” and “wearing blinders that prevent sensible interpretation of ambiguous statutory language.”
“It should be noted that Judge Barrett’s vote also ignored long-established Supreme Court precedent holding that virtually identical statutory language in Title VII of the Civil Rights Act of 1964 prohibited similar employment discrimination on the basis of race.
“To comprehend just how contorted Judge Barrett’s vote in my case was, one needs to look no further that the actual title of the ADEA – it’s called the Age Discrimination in Employment Act. There are three key terms in the name of the law: Age, discrimination and employment.
“Judge Barrett ignored the overarching purpose for the ADEA and parsed a few sentences of text to implausibly determine that Congress intended to extend more protection against age discrimination to older workers who are already holding jobs than to older workers who are applying for jobs. This conclusion is simply false, but it gets Judge Barrett to her desired policy result: protecting the interests of large corporate defendants at the expense of the rights of individuals to be free from discrimination in the workplace.
“I hope hearing about my personal experiences with Judge Barrett will be helpful to all Senators who are responsible for evaluating the fitness of Judge Barrett to serve on the highest court in our nation.”
Chris Mabe, president of the Ohio Civil Service Employees Association, OCSEA/AFSCME Local 11
“My name is Chris Mabe. I am the President of the Ohio Civil Service Employees Association, OCSEA/AFSCME Local 11. We represent Ohio’s public employees in every sector from custodians and employment agency workers to veterans’ home employees and corrections officers in Ohio’s prison.
“At the beginning of this pandemic, if you were a public worker, it was like stepping into a war zone. The response to this health crisis was chaotic at best and life-threatening at worst. PPE was either inadequate or not available at all. And testing was a disaster. Ohio tested three prisons, then quit, despite having the largest COVID outbreaks in the country.
“This is also personal for me. My wife, who works as a Correction Officer at Lorain Correctional Institution, my son and my mother-in-law were all diagnosed with COVID-19. My son and mother-in-law were both hospitalized with the virus. My daughter and I had mild symptoms, so we weren’t tested. But my entire household was presumed positive. And some in my family continue to struggle with the lingering effects of the disease to this day.
“My wife and other OCSEA members have literally put their lives on the line for the safety and well-being for our community and this state. And the ones standing up for them wasn’t their employer and it wasn’t the federal government—it was our union.
“This union has had to fight every step of the way to ensure that our members have the protection they need as well as the policies and protocols in place to keep them safe—just so they can keep doing their jobs for the citizens of Ohio.
“Because of the lack of PPE here and across the country, this union stepped in and purchased $200,000 worth of our own KN95 masks for our members across the state. We handed them out in Ohio’s prisons, our mental health hospitals, our veterans’ homes and our state developmental center. We fought to make sure testing was available and we continue to make our voices heard when it comes to safety procedures and protocols.
“Without a strong union, honestly, I don’t know where we would be. But because our members could speak out. Because they had a voice on the job—we got attention. And boy, did we get attention! You could hardly turn on the TV at night without seeing a story about an Ohio prison. But without a union fighting that fight and making it known and taking it to the streets…no one would have known what prison workers were really going through.
“The worker protections that unions provide are vital for Ohio’s everyday heroes like my wife. First responders and other essential employees don’t have the luxury of staying home or working from home during COVID. If you work in a prison, there’s no dialing it in. If there’s an outbreak, you go in. You run toward the fire, not away from it.
“We have lost five employees in Ohio’s prisons this year, and it didn’t have to be that way. But without our union, we fear, it could have been much, much worse.
“That’s why strong unions and union protections are so important right now. It is literally a matter of life and death for our members. We can’t risk losing these rights at a time when we need them more than ever.
“Let’s give the courageous everyday heroes who put their lives on the line for us, the worker protections they so desperately need so we can continue to make our communities stronger and keep our families safe.
“Instead of trying to ram through a political power play, it's time for the Senate to do what is most urgent and important. Support public service workers, fund the front lines—or pack their bags and let someone who cares about governing take their job.”